Feminist Philosophy of Law

Feminist philosophy of law identifies the pervasive influence of
patriarchy and masculinist norms on legal structures and demonstrates
their effects on the material conditions of women and girls and those
who many not conform to cisgender norms. It also considers problems at
the intersection of sexuality and law and develops reforms to correct
gender injustice, exploitation, or restriction. To these ends,
feminist philosophy of law applies insights from feminist
epistemology, relational metaphysics and progressive social ontology,
feminist political theory, and other developments in feminist
philosophy to understand how legal institutions enforce dominant
gendered and masculinist norms. Contemporary feminist philosophy of
law also draws from diverse scholarly perspectives such as
international human rights theory, postcolonial theory, critical legal
studies, critical race theory, queer theory, and disability
studies.

Addressing the goals of feminist philosophy of law requires theory
development, conceptual analysis, and conceptual revision. Promoting
freedom and equality for women reflects a profound shift in basic
assumptions about the nature of women and their proper place in the
world: a shift from inequality to equality of the sexes, along with
re-examination of what equality itself requires. It also requires
re-examination of the understanding of sex, gender, and gender roles.
Given the scope and detail of this change, feminist legal theory
proceeds on multiple levels, from the pragmatic, concrete, and
particular to the conceptual and ultimately visionary. Some of this
writing appears in philosophy journals and monographs, but much also
appears in journals in gender studies and feminism, generalist law
reviews, and the many specialist law journals devoted to issues of
gender and justice. This article begins with a brief overview of
fundamental themes of feminist legal theory, followed by discussion of
the evolution of views about needed institutional changes in several
substantive areas of law: political equality, immigration, and
citizenship; marriage, reproductive rights, and commodification of the
body; protection from violence; and economic rights.

In philosophy of law, as in feminist theory more generally, methods,
presumptions, and approaches vary considerably. Radical, socialist and
Marxist, postcolonial, transnational, relational, cultural,
postmodern, dominance, difference, pragmatist, liberal, and neoliberal
approaches to feminism are all represented in and provide differing
contributions to feminist legal philosophy. Moreover, feminist legal
theory has developed over time, with concerns such as equality,
liberty, dominance and difference, and diversity and globalization
prevailing at different points (Chamallas 2003).

Despite all these differences of focus, emphasis, or approach, certain
themes are common. Normative assumptions include the equal moral worth
of all human beings (and perhaps of some non-human animals as well)
and the entitlement of beings of such moral worth to equal treatment
under the law, however this might be understood. Feminist philosophers
of law also share certain basic criticisms of traditional views of the
nature of law and legal reasoning, of patriarchal assumptions as
reflected in law, and of the problems that women have in securing
equal justice under law (Smith, 1993, ch. 6). They are attuned to the
ways that power in society is shaped by the shortcomings of various
legal systems as well as to the complexities of improving these
systems, including how to decide the meaning of equal treatment under
law and how it might be achieved. For example, feminist philosophers
of law may disagree about the extent to which law should attempt to
prevent dominance within intimate relationships and is complicit in
oppression if it does not. Neoliberal views emphasize liberty and
consent; criticisms of neoliberalism include the practical
difficulties of choice under circumstances of patriarchy or economic
constraints. To take another example, difference feminists and liberal
feminists struggle with the meaning of equality under law and whether
achieving equality might in some circumstances require different
treatment.

Many standard accounts of the nature of law hold that law presumes and
reflects a world-view in which the goal is to achieve a set of
presumptively coherent and stable propositions. Whether this aim
is understood as “the rule of law” (see, e.g., the entry
on
Friedrich Hayek),
as the “internal morality of law” (see, e.g., the
discussion of Fuller in the entry on
natural law theories),
or as “the soundest theory of the settled law” (see,
e.g., the discussion of Dworkin in the entry on
interpretation and coherence in legal reasoning),
or in other similar terms, legal systems embody comprehensive and
generally long-standing conceptual systems. The coherence of any
particular legal system can always be challenged, but on this approach
an aspiration of any legal system is coherence. And (at a minimum) the
appearance or illusion of coherence is maintained by requirements of
consistency, including following precedent, treating like cases alike,
and maintaining judicial impartiality.

Feminist critics point out that conceptualizing the rule of law in
terms of coherence and consistency tends to reinforce and legitimate
the status quo and existing power relationships (Scales 2006;
MacKinnon 1989). Indeed, one primary purpose of law as traditionally
understood is to promote stability and order by reinforcing adherence
to predominant norms, representing them not only as the official
values of a society, but even as universal, natural, and inevitable.
Law is thus seen as setting the official standard of evaluation for
what is normal and accepted—what is required, prohibited,
protected, enabled, or permitted. It is accordingly represented as
objective—for example, as compelled by precedent and not just a
matter of opinion (see, e.g., MacKinnon 2006, 1989; Smith 2005, 1993;
Rhode 1997; Minow 1991). Violations, wrongs, injustices, harms, or
infractions are by definition deviations from law, and typically also
deviations from the status quo. The status quo is the invisible
default standard of law. From these observations, feminist
philosophers of law have concluded that law makes systemic bias (as
opposed to personal biases of particular individuals) invisible,
normal, entrenched, and thus difficult to identify and to oppose
(Minow 1991; Rhode 1989; MacKinnon 1989). Such systemic bias may be
accepted not only by actors within the legal system such as judges but
also by its victims as well as its beneficiaries. Primary tasks of
feminist philosophy of law are to identify such bias wherever it
occurs within the legal system, through methodologies such as
genealogical analysis, conceptual analysis, or normative critique
(e.g., Bartlett 1990; MacKinnon 1989).

Feminist philosophers of law judge the status quo thus enforced as
patriarchal, reflecting ancient and almost universal presumptions of
gender inequality. This is not a conceptual necessity; law need not be
patriarchal. Law does, however, reflect power relationships within
societies. Throughout history, and in virtually every society, men and
women have been viewed not only as different, but also as unequal in
status and in power. Women were typically cast as opposites to men
within an overarching set of dichotomies: men considered rational,
aggressive, competitive, political, dominating leaders; and women seen
as emotional, passive, nurturing, domestic, subordinate followers.
Versions of this set of assumptions have been widely and pervasively
incorporated in long-standing institutions from politics and economic
arrangements to educational and religious institutions, to aesthetic
standards and personal relations—and law is no exception
(MacKinnon 2006, 1989; Smith 2005, 1993; Olsen 1983).

A central task of feminist philosophy of law is articulating what
equality requires against this background of patriarchy; however,
feminists take differing approaches to this problem. For liberal
feminists, a primary task is achieving the principle of procedural
equality articulated by Aristotle that like cases should be treated
alike and different cases differently in proportion to their
differences. For other feminists, this focus on procedural justice
raises the question of whether there are differences between men and
women that the law may justifiably take into account. For many
centuries men and women have been viewed as significantly different,
and since they are different it has been thought appropriate and
justified to treat them differently in law. Indeed, one of the reasons
for the entrenchment of sexual inequality is precisely the observation
that some differences between men and women are real: only women can
become pregnant and bear children. Historically, feminists contend in
a variety of ways, such differences were greatly exaggerated, as was
their significance and the extent to which they could be attributed to
biology rather than being socially constructed.

For feminist philosophers of law, an ongoing set of issues has
concerned which differences, if any, law may take into account
consistently with equal treatment. There are biological differences,
such as pregnancy and birth. There are statistical differences:
men are taller and stronger; women have longer life expectancies.
There are historical differences: women but not men have been
systematically subordinated because of their sex—unable to vote,
to own property, or to enter into legal contracts. Women are much more
at risk to be raped. Women are much more likely to be responsible for
caregiving in the family. Women are likely to earn less for the same
work, and likely to be segregated in jobs that pay less than work that
is male dominated. The feminist challenge is whether and how to
acknowledge certain differences without entrenching stereotypes,
reinforcing detrimental customs, promoting sexist socialization, or
incurring backlash (Rhode 1997; Minow 1991)—and without
compromising equality.

This challenge identifies “dilemmas of difference” (Minow
1991), which occur when a decision is based on unstated norms that
presume the status quo as universal and inevitable when in fact these
norms reflect a particular point of view. The structure of a
difference dilemma is this: there is a difference, such as that
only women become pregnant or that an employer has a history of
refusing to promote women. Taking this difference into account seems
required for equal treatment: otherwise, women will face disadvantages
that men will not. But taking this difference into account also seems
to instantiate unequal treatment, giving women special benefits (time
off work, fast-track promotions) men do not have. So it seems there is
no way to achieve equality in the face of differences such as
these.

Countering a difference dilemma requires undermining the way the issue
was initially formulated (more accurately, mal-formulated).
Feminist critics of the view that pregnancy leave is a special
benefit, for example, point out that the only way these benefits can
be judged special is if the norm against which they are being
evaluated is male. If the standard was female, or even human, such
benefits could not be considered special (or even unusual) since they
are far more commonly needed than, say, benefits for a broken leg, or
prostate cancer (neither of which are considered special benefits).
The underlying male standard is invisible because it is traditional
for most workplaces, and pregnancy leave would require a change to
these norms; but in the view of feminist critics, this underlying
standard needs to be exposed as male because in fact it is not equal.
(Rhode 1997; Minow 1991) Once male norms are recognized as only
that—male norms—the presumption of difference must be
corrected. If the need for correction is taken seriously, then legal
recognition of difference cannot by itself imply unequal treatment. An
assertion of difference is a factual assessment. Equality is a
political (or moral) standard. One does not automatically follow from
the other. Thus formulation of the debate in terms of sameness or
difference must be transcended by understanding equality. (Smith 2005;
Rhode 1997; Minow 1991).

Legal standards of reasonableness are another area where feminist
philosophers of law strive to reveal male norms. In areas of the law
from criminal law (would a reasonable person believe that the threat
of harm was sufficient to require the use of force in self-defense?)
to tort law (did the defendant exercise reasonable care?) to contract
law (what are reasonable commercial standards of fair dealing?) to
employment discrimination (was she reasonably offended by the conduct
of others at work?), reasonableness standards play a major role in
law. Traditionally, the standard was that of the average reasonable
man, a formulation that overtly indicated its gendered nature. Today,
the standard is more likely to be formulated as that of a reasonable
person, but feminists continue to demonstrate how this standard
reflects male norms. A particular area of current controversy is
interactions with the police, where feminists join with many others
such as the Black Lives Matter movement or disability rights groups to
reveal the biases in what is judged reasonable for police to do and
what responses to police conduct are thought to be reasonable (Cuevas
and Jacobi 2016). Feminists have also proposed the standard of an
average reasonable woman, which achieved one success in court,
Ellison v. Brady,
924 F.2d 872 (9th Cir. 1991). However, the presence of a
separate legal standard may be criticized as unfair or as fragmenting
the law into a variety of subjective perspectives—although this
conclusion is also subject to critique as an illustration of the
difference dilemma. More recent feminist attention has been directed
towards de-legitimating masculinist perspectives of reasonableness and
achieving equality in the understanding of reasonableness (Chamallas
2010). Areas of law such as tort (Chamallas and Wriggins 2010) and
contract (Threedy 2010) have been reassessed as reflecting bias in
their structure, the types of claims they recognize, their
understanding of injury, and the compensation they provide. To
summarize, a persistent theme in feminist philosophy of law is
uncovering how masculinist, ableist, or white norms are reflected in
law.

Another central theme in feminist philosophy of law is the viability
of the public/private distinction. For liberals, including liberal
feminists, there remains a domain of private life that should be
reserved for individual choice. Radical feminists raise the
concerns that patriarchy and sexual dominance pervade private
relationships and there are no clear lines to be drawn between actions
that primarily affect the individual and actions that affect others
more broadly. Legal structures that permit or reinforce dominance
within intimate relationships are thus deeply problematic and must be
overturned. One area where this debate has taken shape among feminists
is the law of prostitution (see the discussion in the entry on
feminist perspectives on sex markets);
some liberals claim that when prostitution is fully voluntary, it
should be legally permitted, and the role of law is to prohibit
coercive forms of the practice. Other feminists argue that legalized
prostitution simply allows sex trafficking to flourish in its shadow
(Dempsey 2010) or more comprehensively that paid sex can never be
fully voluntary (Miriam 2005). Other continuing areas of theoretical
exploration among feminists are the weight and scope to be given to
any distinction between the public and the private in reproduction,
family structures, work arrangements, sexual relationships, domestic
violence, and the like; these issues are discussed further in later
sections of this essay.

Human rights theory is another central area of concern for feminist
philosophers of law. By the end of the 20th century many
societies had officially rejected sexual inequality in law, at least
as a matter of basic human rights. Human rights are now said to apply
equally to women and equal protection of the law is seen as applying
equally to men and women (United Nations Convention on the Elimination
of All Forms of Discrimination Against Women [CEDAW] 1979). Feminists
hail these developments but remain concerned that in many societies
commitments to human rights are shallow and laws reflecting
patriarchal environments and cultures continue to thrive and flourish.

In addition, some feminists are directly critical of the role of
rights. Feminists associated with the critical legal studies movement,
for example, see rights as potentially masking underlying
relationships of power and domination (Scales 1986). Other feminists,
such as those associated with critical race theory, voice concerns
that dominance feminists assume an essentialism that silences the
voices of African-American women (Harris 1990) and that rights may
provide crucial protection to victims of discrimination and oppression
(Williams 1992). Similar debates concern rights in international law
with liberal feminists defending the gains achieved through the
international recognition of human rights and critical theorists
joining with some third world feminists to decry the structural bias
of international law and the role of rights in continuing to mask
oppression (Engle 2005; Otto 2005).

Methodologically, feminist philosophy of law draws a great deal from
feminist work in other areas of philosophy and has broken new ground
as well. Feminist
epistemological accounts
of epistemic injustice and the social nature of knowledge are
especially salient to many questions about and within law (McKinnon
2016). Trials, after all, depend on testimony. Fricker (2007)
considers both testimonial injustice and hermeneutical injustice.
Testimonial injustice occurs when people are discounted as credible
because of stereotypes such as those rooted in sex or race; it may
also occur when people are assessed as overly credible for similar
reasons, likely to the detriment of the credibility accorded others
(Medina 2013). For example, a woman’s testimony may be
discounted in allegations of rape in the face of her assailant’s
claim of consent. To take another example, claims of asylum seekers
about threats they face in their home countries may be disbelieved.
Hermeneutical injustice occurs when others do not even have the
concepts to understand what someone is saying, as when a victim of sex
trafficking claims she was coerced but police or immigration
authorities can only visualize her as an economic migrant. Work of
African-American feminists such as Dotson (2011) present especially
powerful accounts of race-based epistemic injustice. An additional
illustration of the importance of feminist epistemology is the
development of understanding of first person standpoints. This work
has informed discussions of victim protection, for example (Schroeder
1991).

Work in relational metaphysics has helped in analysis of how legal
institutions should reflect connections among people, including care
relationships (McClain 1992; West 1988). Many feminist writers in this
tradition have taken pains to distance themselves from simplistic
essentialist assumptions about the way women think or the role of
women as caregivers, emphasizing instead the importance of context to
understanding. Feminist theory has inspired and deployed new forms of
legal realism—the view that law reflects its social
context—to criticize the frequent formalism of approaches to law
in terms of economic relationships and rational choice (Nourse &
Shaffer 2009). Feminist scholarship on human rights—viewed in
the abstract as universal—has also emphasized the importance of
lived experiences in context (Halley et al. 2006). Debate about
whether all forms of prostitution should be prohibited, or whether
there is room for a liberal view that would distinguish coerced
trafficking from voluntary sex work, is but one illustration of such
scholarship. Legal archaeology, understood as exploration of cases in
their full context, is a method developed by Threedy (2010) and others
for criticizing the formalism of much legal analysis and revealing the
extent to which gendered norms permeate legal doctrines such as
defenses in contract law. Feminists interested in criticizing
paradigms of rationality and breaking down supposed divisions between
reason and emotion have questioned whether there is a too-ready
willingness to reject emotions in supposedly non-gendered contexts
such as the law of evidence where the rules are constructed to
eliminate appeals to emotion as irrelevant—but a too-ready
acceptance of emotion in contexts where women are stereotyped and
disadvantaged, as with the Supreme Court’s assertion that the
state has an interest in protecting women from partial birth abortion
because they might later come to regret their decisions (Abrams &
Keren 2010).

Intersectionality theory is an especially important recent development
in feminist methodology of relevance to philosophy of law. Feminists
using an analysis of intersections between race, sex, and other
identity categories discern essentialist tendencies that gloss the
complexities of identity in the work of both radical and liberal
feminists (Crenshaw 2012, Harris 1990). Intersectionality theorizes
how locations in multiple socially constructed categories such as
gender, race, class, or disability affect how people live (Jones 2013,
Haslanger 2012). Theorizing without intersectionality made women of
color and other multiply oppressed people invisible; keeping
categories such as race and sex separate made it more difficult to
achieve justice for persons who were multiply oppressed.
Intersectionality creates interlocking and superimposed axes of
privilege or disadvantage (Haslanger 2012). An illustration can be
found in ways that prison violence arguably tracks intersections
between vulnerability and identity categories, with images of female
vulnerability both reinforcing sexist thinking and contributing to the
oppression inflicted by the racist carceral state (Gilson 2016).

The mid-twentieth century women’s movement—so-called
second wave feminism—began as a liberation movement (see the
entry on
feminist political philosophy).
The idea was that women are entitled to be free and equal
citizens—as free as men to participate in their societies, to
pursue their ambitions and determine their own lives. A starting place
for achieving equal citizenship was political equality. Despite the
facts that political equality had been defended by the Seneca Falls
Convention in 1848 and by and
Harriet Taylor Mill
in the “Enfranchisement of Women” in 1851, and that
women’s suffrage had been achieved in the United States and in
many other countries by the early 20th century, at
mid-century political equality remained a radical idea that led to
some radical legal reform. And it remains a deeply contested concept
nearly 75 years later.

While the basic right to political equality is taken for granted in
many societies today and is explicit in the norms of international law
(CEDAW 1979), in some cultures women are still not equal citizens.
Some are unable to vote, hold office, attend school, engage in
business, or travel about freely. Some do not control their own
reproductive lives, access to their bodies, the opportunity to pursue
any life ambition other than marriage, or who their marriage partner
will be. Some women have little control over any major decisions about
their lives. In some societies they are banned by law from making all
or some such decisions, and thereby are rendered dependent on those
who can.

One of the most fundamental goals of global feminist jurisprudence is
to oppose and reform barriers to women’s participation in the
public sphere. The basic premise is that unequal citizenship
constitutes second-class status that cannot be justified. Equal
citizenship is a presumptive value in the modern world.
Problematically, in law the burden of justification typically lies
with the reformer and precedent favors the status quo (MacKinnon
2006).

International recognition of human rights has been particularly
important as a means to achieve equal citizenship. Feminist legal
scholars have been pursuing issues of women’s human rights
internationally for many years, at least since the United Nations was
officially formed in 1945. CEDAW, adopted in 1979, sets the
international human rights standard against gender discrimination.
Especially since the 1980s, these efforts have been aided by mass
communication, international travel, and the Internet (Rhode &
Sanger, 2004). International conferences have promoted dialogue and
exchange of ideas on issues ranging from honor killing to labor law.
Some international groups (both NGOs and government-sponsored) are
specifically focused on (what are often called) women’s issues,
such as violence against women and girls, women’s economic
viability, or women’s health and reproductive issues (see, e.g.,
the links in the Other Internet Resources Section to CRLP, Futures
without Violence, Gendercide Watch, Human Rights Watch, National
Network to End Domestic Violence, Wild for Human Rights, and
WomenWatch). The collection of data by social scientists is more
accurate and inclusive than ever in history, thus providing better
foundations for analysis. Finally, collaborative research and
comparative analysis of diverse legal systems and social customs have
been increasing for at least thirty years, and in virtually every
society more women are available to engage in these efforts and more
men have become interested in them (see Jain 2005; Rhode & Sanger
2005; Stark 2004; Sen 1995; Peters & Wolper 1995)

Beyond equal citizenship, feminist jurisprudence also criticizes legal
or political structures that would put disproportionate burdens on
women or children seeking to live or to become citizens in countries
other than their country of origin. Here, feminists reveal how asylum
or refugee policies may be based on male models of what constitutes
persecutions, discounting forms of structural injustice that
disproportionately burden women (e.g. Parekh 2012; Freedman 2008).

The cumulative result of these efforts has been to globalize both the
issues and the approaches to them. Providing a global perspective
encourages conditions favorable to the conceptual revision needed for
legal reform. As nations join and sign international conventions and
treaties that increasingly include rights for women, feminists are
supplied with a foundation from which to argue that local laws must
comply with these international commitments. For example, signing the
Declaration on the Elimination of Violence Against Women implies that
a nation is committed to enacting and enforcing laws against violence
toward women. Ratifying the U.N. Declaration of Political and Civil
Rights implies that a nation is committed at a minimum to universal
suffrage and more generally to equal citizenship. Becoming a state
party to CEDAW affirms support for equal human rights and for
elimination of all forms of discrimination against women. Although a
number of states expressed reservations in their acceptance of CEDAW,
the US did not. Thus, international law and treaty commitments can be
used to argue for national or local legal reform (Schneider 2004;
Peters & Wolper 1995).

Yet even if the goal of stated legal equality is achieved, law
provides no protection unless it is enforced. Feminist legal critics
have argued that laws and treaties that exist on paper frequently are
ignored in fact when they apply to women and contradict local customs
and beliefs (Husseini 2007; MacKinnon 2006). An additional concern is
that formal acceptance of treaties may mask failures to implement
treaty requirements (Hathaway 2005)

Moreover, the meaning of equal citizenship beyond equal political
participation remains contested. An initial liberal feminist approach
was to argue strictly for formal equality, that is, to deny that any
sexual difference was ever relevant to legal doctrine. This strategy,
often called the assimilation model, was an effective strategy for
challenging overt legal restrictions on women and legally enforced
exclusion (Taub & Williams 1993; Smith 1993; Bartlett &
Kennedy 1991). For example, in the US feminist lawyers argued
successfully that statutes treating women differently for purposes
such as estate administration or age of majority violated
constitutional equal protection, following the initial lead of Ruth
Bader Ginsburg as director of the ACLU Women’s Rights Project in
Reed v. Reed
(404 U.S. 71 (1971)). At its most comprehensive, this was the
approach of US feminists seeking passage of the unsuccessful Equal
Rights Amendment (ERA) to the Constitution, an amendment that would
have put sex on the same fundamental legal footing as race.

Achievement of equal citizenship viewed as the removal of explicit
legal barriers leaves open whether equality requires more. Even in the
United States, much legal room remains for continuing controversy. The
effort to establish full constitutional equal protection through the
ERA foundered on assertions that differences matter to issues as
diverse as military service, child support, or bathroom utilization
(Mayeri 2011; Frug 1992). This argument fueled
conservative opposition to the ERA, but these issues were raised in
different forms for feminists as well. Feminists emphasizing
class differences and labor rights were concerned that hard-won
benefits for women could be jeopardized. Critical race theorists were
concerned that formal equality for women failed to understand the
complex intersectionality of discrimination against women of color
(Mayeri 2011). Critics of patriarchy insisted that histories of
discrimination were central to understanding the functioning of male
norms in social institutions from the family to employment to
political structures. At present, in US constitutional law what equal
protection requires when sex is a category has not been modeled on the
strict scrutiny accorded race as a category; sexual differences
concretized in law must only pass a level of heightened scrutiny as to
their rationale to garner constitutional acceptance.

Across the globe, there are similar debates about what more is
required beyond formal equality of citizenship. CEDAW’s (1979)
requirement for the elimination of “all forms” of
discrimination against women has been a framework for these debates
(IWRAW-AP 2012). These debates are complicated, however, by concerns
that at least certain ways of understanding human rights norms
incorporate so-called western values and are incompatible with
legitimate cultural differences. Whether theories of rights can be
formulated in a manner that accommodates cultural differences has been
given considerable attention by feminist political philosophers
(Mookherjee 2009; Ackerly 2008) and is centrally relevant to the
understanding of international human rights norms and their role in
law.

Nowhere than in marriage is the legal bias towards the status quo more
apparent. Yet in many jurisdictions across the globe, same sex
marriage is now legally recognized. The U.S. Supreme Court held in
Obergefell v. Hodges
that prohibitions of same sex marriage violate constitutional
guarantees of due process and equal protection (576 U.S. ___ (2015)).
Liberal feminists and many others have hailed this decision as a
significant victory. Nonetheless, concerns remain about the
decision’s scope. In many jurisdictions, a couple’s
marriage may be protected but they will not be protected against
decisions of their employer to fire them or of their landlord to evict
them. It is also unclear whether people will be able to refuse them
services on religious grounds; the Supreme Court will decide this
issue during its 2017-2018 term.

Still further critics argue that extension of marriage to same sex
couples merely entrenches a fundamentally inegalitarian relationship.
The view that equality requires extending the institution of marriage
to same-sex partners, if it is to be available to opposite-sex
partners, is a liberal view. In the eyes of critics of liberal
marriage, marriage itself must be rethought, if gendered inequalities
are to be overcome (Brake 2014). Valorizing marriage also potentially
harms those whose relationships take other, less valued forms, such as
asexual relationships, polyamorous relationships, or care networks
(Brake 2014). To the extent that marriage institutionalizes
problematic forms of dominance, it would seem a mistake to extend it
at all—or at least to extend it without significant substantive
changes in the institution (Kim 2010). Assimilationist paradigms both
recognize the pain of exclusion but fail to problematize the role
marriage plays in institutionalizing inequality (Robson 2002).

Reproductive autonomy is another particularly telling example of the
ongoing force of gender norms. Feminists plausibly contend that women
cannot be free and equal citizens if they do not control their own
bodies. Much feminist research has detailed the history and debated
the implications of current laws and policies that have allowed or
constrained women’s reproductive freedom (see, e.g., Peach 2002;
Rhode 1997). Paternalistic attitudes towards women have been
identified as shaping the structure of the Supreme Court’s
Roe v. Wade
(410 U.S. 113 (1973)) decision and subsequent efforts by states to
regulate or restrict abortion in the name of protecting women’s
health (Appleton 2011; Laufer-Ukeles 2011). Even feminists who
personally oppose abortion, or who are critical of some abortions
(e.g., those evidencing disability discrimination) typically argue
that abortion should still be legal. Some argue that controlling
one’s own body is a necessary condition for any other freedom
(see, e.g., Peach 2002; Estrich 2001; Rhode 1997; Olsen 1993). Yet
together with paternalistic attitudes about the need to protect women
from their emotionality and irrationality in the reproductive process,
traditional views of women’s reproductive roles have shaped law
and policy. Laws permitting abortion remain under attack; many U.S.
jurisdictions now have laws targeting abortion providers (TRAP laws),
although in
Whole Woman’s Health v. Hellerstedt
(579 U.S. ___ (2016)) the U.S. Supreme Court struck down
Texas’s TRAP laws as impermissibly burdening women’s
rights without providing corresponding benefit for women’s
health. Feminists point out that analyses of whether such statutes
place undue burdens on women’s rights in terms of formal legal
barriers manifest legal formalism that conceals the reality of ongoing
oppression or inequality of opportunity. The Hellerstedt
decision rejected such formalism in favor of an analysis of the actual
benefits and burdens of the Texas laws by a slim 5–3 majority
after Justice Scalia’s death, but with the addition of Justice
Gorsuch one further appointment to the Court could tip this
balance.

The abortion issue also raises questions about how law should deal
with issues of deep moral disagreement within society. In the United
States, the protection of women’s reproductive freedom from
restriction by government was initially based on the right to privacy
and is now understood in terms of liberty. First applied to
reproduction in the 1965 case of
Griswold v. Connecticut
(381 US 479 (1965)), the constitutional right to privacy was
understood to protect individuals from state interference with certain
decisions affecting their private lives, particularly decisions about
marriage, family, sexual intimacy, and procreation. Griswold
was jurisprudentially controversial because the right to privacy is
not explicitly stated in the Constitution. Feminists have argued that
originalist approaches to constitutional interpretation that would
restrict constitutional meaning to the understandings in place at the
time constitutional provisions were adopted are jurisprudentially
problematic in their entrenchment of the norms of the patriarchy of
the day (e.g. Case 2014) More recent decisions about abortion rights
have been framed in terms of fundamental liberties that may not be
unduly burdened (e.g.,
Planned Parenthood of Southeastern Pennsylvania v. Casey
(505 U.S. 833 (1992))).

On the other side of the abortion debate from women’s
reproductive liberty is the question of the fetus. Roe v.
Wade’s extension of the right to privacy to a woman’s
decision to terminate a pregnancy by elective abortion set off a
firestorm of protest and debate that remains robust over forty years
later. Even the language used to state the issues is contested.
Labeling the fetus a “pre-born infant” or a
“person”—as some of the attempts to pass so-called
personhood amendments have tried to do—begs exactly the question
of what if any moral claims the fetus might have (e.g. Francis, ed.
2017, part IV). Many feminists hold nuanced views on these questions.
For example, disability rights feminists may argue that while abortion
rights should be protected, abortion decisions that are based on
inadequate or biased information about disabilities are problematic.
Black feminists may interrogate whether abortion policies or support
for women and families are racially biased, implicitly or even
explicitly. Many feminists also agree that the state has an interest
in protecting the fetus to the extent that it will be born
alive—that is, that the state has an interest in protecting
continuing pregnancies against fetal harm, including harm inflicted by
the pregnant woman herself—although feminists also recognize
that this interest must not be seen to legitimize problematic coercive
or paternalistic interferences with pregnant women’s
liberty.

In its more recent cases the US Supreme Court has held that the state
interest in protecting potential life may begin at the moment of
conception even though the mother’s interest outweighs it
(Planned Parenthood v. Casey,
505 US 833 (1992)). The Court’s continuing jurisprudence bears
out initial feminist concerns that saw this formulation as the tip of
a wedge (e.g. Peach 2002). For example, the 2007 decision of
Gonzales v. Carhart
(550 U.S. 124 (2007)) upheld the constitutionality of the Partial
Birth Abortion Ban Act of 2003. The Act bans what it terms partial
birth abortion—language freighted with the imagery of a
live-born person—except when necessary to save the life of the
mother. In the decision, the Court weighed substantial state interests
in protecting the health of the mother and in preserving fetal life as
interests present all along during pregnancy against the burden placed
on the woman’s right of reproductive liberty. Opponents of the
Act claimed that its partial birth label concealed the extent of its
restriction on pre-viability abortion choices. The decision has
spurred state efforts to enact the TRAP laws described above. These
state statutes have placed increasing burdens on abortion providers;
many have closed and abortion is practically unavailable for women in
many areas of the United States despite the Supreme Court’s
decision in Whole Woman’s Health v. Hellerstedt.

Feminists also criticize the US Supreme Court’s reasoning in
support of the state interest in protecting potential life. One
concern is the scope of the supposed interest, such as whether it
extends to the sale or distribution of contraceptive devices that
prevent implantation after fertilization, or that even are claimed to
do so in rare cases. Another concern is how any interest in protecting
fetal life from the moment of conception can be supported in a
secular, liberal state. If the answer is that there is some special
status accorded to the human embryo or fertilized egg that requires
its protection from the moment it is fertilized, feminists argue, this
is best characterized as a religious view. If so, religious beliefs
are being imported into state laws and the US Constitution that have a
disproportionate impact upon women. The vague references to protecting
potential life, so central to all the Supreme Court’s decisions
on this complex issue, obscure these critical implications and are
problematic on many grounds. Even in a modern, secular, liberal state
that is explicitly committed to individual freedom, women’s
fundamental liberties can be obscured and mystified by language and
action that uphold and impose longstanding restrictive modes of
thought and custom that may not always be recognized as religious in
origin but that have no other plausible explanation. Such restrictions
are often expressed in and defended by the use of religious language
(such as sacred-ness or sanctity) that is applied to controversial
religious doctrines as though they were settled, basic and
uncontroversial.

Some societies explicitly incorporate religious law into their legal
systems, operate dual systems, or are expressly theocratic. Others are
secular but faced with strong customary elements. To some extent all
societies face the problem of customary resistance to reform, as
illustrated by the abortion debates in the United States. In nations
with strong religious or customary influences on law, feminists may
face difficult issues of how to interpret religious law into language
more favorable to women’s freedom, how to call upon
international human rights norms, and/or how to interpret the language
of customary law in a way that enables it to absorb feminist reforms
over time (Quriashi 2011). This is a special case of the general
problem of entrenchment. It may involve several different ways of
challenging the religious establishment on matters of interpretation
that are (traditionally) considered settled or fundamental. Some
customary doctrines arguably have no particular basis in religious
texts, although they are treated as though they do (e.g., when life
begins). Furthermore, some doctrines have a very general religious
basis (e.g., women should be modest) but are interpreted to require
far more severe or detailed customs (e.g., women must be entirely
covered whenever they are in public). A further strategy points out
that all religious interpretation is selective, so it must be
determined whether a passage of text should be considered basic and
eternal, or whether it was simply a reflection of particular customs
or attitudes relevant to a particular time in history (e.g., adultery
and blasphemy are capital offenses). Some innovative work has been
done on these issues, for example, by exploring the distinction
between shari’a (eternal) law and fiqh (custom
or jurisprudence) in Islam, and by considering the interplay of dual
systems (Quriashi 2011; Mir-Hosseini 2005; Reed & Pollitt 2002;
Jeffrey & Basu 1998). These approaches emphasize interpretive
methods; a further approach calls on the separation between law and
morality endorsed by legal positivism to disentangle traditionalist
moral beliefs from the requirements of law.

Since the adoption under the Affordable Care Act of the requirement
that contraception methods approved by the U.S. Food and Drug
Administration be included in group health plans without cost-sharing,
many have voiced religious objections to providing this coverage.
Feminists argue that contraceptive use declines with costs and that
ready access to contraception is an important part of women’s
ability to control their bodies. They also point out how the burdens
of contraception and contraceptive failure fall on women rather than
men. Objectors contend that contraception should be a matter of
private choice rather than a government requirement, that at least
some contraceptives are problematic as abortifacients (although this
contention is contested for contraceptive methods such as the
intrauterine device), and that rights of conscientious objection
should be respected. Here, too, philosophy of law considers the role
of law in resolving these disputes.

Commodification of the body especially in reproduction is a topic of
extensive discussion among feminist philosophers of law. As
reproductive technologies have become increasingly sophisticated,
pressures for women to sell their oocytes or to be paid to bear
children for others have mounted. Some liberal theorists urge that if
paid sex, paid surrogacy, paid gamete donation, and the like can be
achieved voluntarily, these are legitimate forms of economic
opportunity. To prohibit them is to deprive some
people—primarily women—of opportunities that might be of
value to them and to deprive the biologically and the socially
infertile of the ability to form families. Indeed, if all forms of
sexuality, including marriage, were viewed on the model of economic
relationships, some argue, equality for women would be furthered
(Ertman 2001). Feminists critical of this liberal position argue
that commodification may misperceive the nature of the body in human
life by understanding it as the subject of property—despite the
all-too-apparent reality that alternatives to commodification may be
worse (Radin 1996). Relatedly, some contend that commodification of
the body in practices such as paid surrogacy is inherently
exploitative (Dickenson 2007).

Many liberal feminists, too, are opposed to a variety of
commodification practices. Some argue that abolition of even voluntary
prostitution is necessary to protect victims of sex trafficking, as
legalized prostitution may mask continued flourishing of trafficking
in its shadow (Dempsey 2010). Others are concerned about the
possibility of genuinely voluntary consent in circumstances of poverty
or limited opportunities for many women. Several countries that have
legalized prostitution, such as the Netherlands and Germany, have
engaged in vigorous debates about whether legal prostitution is a
voluntarily chosen occupation for many, whether legalization has
bettered the circumstances for prostitutes, and whether legalization
has been coupled with enhanced enforcement of laws against sex
trafficking or other sex crimes. Other countries, such as Sweden, have
banned prostitution altogether, spurred by feminist critique of the
practice.

Related to the concerns about commodification of the body are
criticisms of what are seen as questionable technological imperatives,
even apart from the economic incentives that may be driving them. Some
feminists contend that practices such as pre-implantation genetic
diagnosis, transplants of mitochondrial DNA, or gene editing are far
riskier both physiologically and ethically than proponents admit (e.g.
De Melo-Martin 2016). These feminists point out that long-term
evidence of safety is lacking and that there may be unanticipated
deleterious consequences of these techniques. These practices may
portend far-reaching changes in our understanding of individual
identity and what it is to be human. Whether law in the form of
prohibitions or regulations should be imposed on these practices, or
whether they are a matter for individuals to decide for themselves, is
deeply contested. Some liberal feminists, for example, argue that
individual’s choices about the reproductive risks they are
willing to take should be respected, especially when they are striving
to avoid disease in their potential offspring.

An ongoing theme in all these debates about marriage, reproduction,
and the body has been the extent to which these issues should be
understood in terms of protecting liberty, and how much they should be
understood in terms of achieving equality. For liberal feminists, the
extent to which women may exercise uncoerced choice over their bodies
and their private lives is key. If women choose marriages in which
they are dependent economically, make choices about how many children
they will have, and elect to spend their lives in uncompensated
domestic labor, those decisions should be respected as long as they
are not coerced. For other feminists, what is critical is the extent
to which even apparently free choices are exercised against a backdrop
of economic inequality or patriarchal dominance. For these feminists,
economic dependency and norms of dominance call into question the
possibility of genuinely free choice.

No individual is entitled to inflict gratuitous harm upon another and
no one should have to live in fear. These are among the few
uncontroversial principles accepted in all moral systems and form the
core of the criminal law in every society. Keeping peace and order has
long been considered a fundamental justification for the very
existence of the state or legal authority. Many philosophers have
explicitly supported this idea, even those who argue for limitations
on the state.
J.S. Mill,
for example, argued that the only legitimate reason for interference
by the state in the affairs of individuals is to prevent one person
from harming another. Thomas Hobbes argued that peace (i.e., personal
security) is the ultimate political value for which a rational
individual would sign on to the social contract justifying state power
to protect the security of every man from the potential threat of
every other (see the entry on
Hobbes’ moral and political philosophy).
And
Montesquieu
defined political liberty as the tranquility of mind that comes from
not being subject to fear for one’s safety. To achieve such
tranquility of mind he proposed the separation of (governmental)
powers to retard the abuse of power that could so threaten the
security of citizens. From
Confucius
and Lao Tzu to Mohammed or Gandhi, and from the Ten Commandments to
the Code of Hammurabi, personal security—freedom from
fear—is a value that the state is expected to secure and
maintain.

Until the 20th century, however, these commitments did not
protect women from a frequent source of danger, their intimates:
husbands, lovers, relatives, friends, or employers. Indeed, for much
of history these common threats to the personal security of women were
not recognized as harms at all that it was the business of the state
to address. Instead, they were frequently taken to be inevitable, a
matter of right, or justifiable. Not surprisingly, a great deal of
feminist legal scholarly attention and reform effort has been directed
to revealing and changing the many ways in which law fails to protect
women and girls against forms of violence such as rape (including date
rape and marital rape), domestic abuse, sexual harassment, and other
types of abuse. Although some countries do not collect official data
and the nature and incidence of such violence varies widely by
culture, many studies indicate that no society is exempt from these
forms of violence. The 2012
United Nations Millennium Development Goals Report
observed that although equal numbers of boys and girls are now
attending school across the globe, violence against women continues to
undermine progress towards all goals.

In legal theory about gendered violence, the possibility of separating
the public from the private sphere is critical. Historically law did
not address injuries inflicted by intimates. So, while the single
greatest civil purpose of law has been to keep men from violating one
another (the only greater being to repel foreign invasion), much
violation of women by men has been considered as a private matter
beyond the purview of law. Domestic chastisement was once considered
legitimate discipline of one’s wife and marital rape was
excluded from the definition of rape in many criminal law statutes.
Feminists criticized the presumption that such behavior among
intimates was beyond the purview of the criminal law and these
limitations have largely been overcome, at least in the United States
and Europe.

Many other problematic aspects of rape law have also been revised in
light of feminist critiques. Historically, rape by an acquaintance was
not seen as “real rape” (Estrich 1987) but as more likely
consensual sex. Acquaintance rape was made virtually impossible to
prove by strict corroboration requirements and other rules of
evidence. Another hurdle to proof of rape presented by the rules of
evidence was the requirement of active resistance: victims who did not
actively resist—including those who were most terrorized or who
feared harm from resistance—were judged to have consented to
whatever happened to them, or at least to have reasonably appeared to
their attackers as consenting (McGregor 2007). Victims also were
discouraged from pursuing complaints by evidence rules that permitted
them to be examined about past sexual histories, thus forcing them to
reveal intimate private matters and subjecting them to judgment as
immoral themselves. Victims who delayed reporting alleged rapes,
perhaps out of shame or fear, were considered not to have made a fresh
complaint and thus to be less credible. Many of these rules have been
formally overturned but it is less clear whether as a practical matter
they continue to infect decisions such as whether to prosecute, how to
examine witnesses, or how to assess the credibility of witnesses.

Contemporary discussions of the definition and proof of rape continue
to struggle with questions such as what consent to sex really means.
Some feminists have argued that there is a domain of wrongful sex that
is different from rape; Cahill (2016), for example, argues that sex
that occurs within context of structural injustice is unjust sex that
may be within a gray area of ambiguity. She distinguishes cases in
which the woman is less than fully willing, cases in which the
woman’s will is clearly overcome, and cases in which the victim
cannot fully consent due to incapacity. What distinguishes these types
of cases, Cahill says, is how the victim’s sexual agency is
deployed. She characterizes as unjust sex in the gray area in which
the woman’s sexual agency is actively sought but undermined for
example in circumstances in which her consent is simply expected or in
which it is difficult for her to express unwillingness. Subtle
discussions such as this illuminate why some rape cases are so
difficult for law to handle, as law deals in bright line
determinations such as whether conduct was criminal. Allegations of
rape in contexts in which one of the parties is under the influence of
drugs or alcohol also place pressure on the idea of agency in the
context of sex. Heyes (2016) explores the phenomenology of agency and
the harms of assaults involving victims who are semiconscious or
unconscious.

Difficulties about consent and proof attend other forms of violence
against women as wll. Incest, like rape, was always illegal but rarely
admitted, let alone prosecuted. Prosecutors were all too willing to
drop charges when women chose not to press them, potentially confusing
respect for the victim’s choices with her fear of embarrassment
or coercion. And sexual harassment (like sex discrimination) simply
did not exist as legal claims until the 1960s or later (MacKinnon
& Siegel 2004; MacKinnon 1979). So it is clear not only that equal
protection of law for women was not recognized until recently, but
also that the force of law was used to back male dominance. If a man
were attacked on the street he could pursue his attacker in the courts
of law. If a woman were attacked in her home she had no legal cause of
action as it was considered a private matter. Many feminist critics
contend that in important respects such domestic violence amnesia
continues to characterize how law functions (Dempsey 2009). This is
true in both criminal law and the law of private damages, according to
these critics (Chamallas & Wriggins 2010).

Over the past 30 years or so, many jurisdictions across the globe have
enacted major improvements in formal legal protections against
violence once considered private. Rape laws have been reformed to
varying degrees in many societies, although even the best arguably
still have far to go (McGregor 2005; Estrich 2001; Taslitz 1999;
Schulhofer 1998). For example, most western nations no longer require
corroboration of rape by witnesses. In many jurisdictions, consent is
no longer presumed from the absence of resistance and far stricter
requirements for the relevance of evidence are in place. Feminist
lawyers have worked hard to secure these legal reforms and they
represent important achievements. International law too has recognized
the rape of women in war as a crime against humanity (see the United
Nations International Tribunal for the Former Yugoslavia page on
Crimes of Sexual Violence),
and prosecutions for this crime have recently taken place for the
first time in history. Sexual harassment and sex discrimination are
now rather widely recognized as wrongful behavior and legal causes of
action in a variety of forms.

Despite this significant progress in formal law, crime statistics
continue to verify that violence against women remains a problem of
major proportions. Reporting rates are low. Conviction rates in no
sense reflect a full commitment to punishing these crimes on a par
with punishment of other crimes (Estrich 2001; Schulhofer 1998). The
result of such enforcement failure, feminists contend, is that in
practice men have almost the same powers over women that were
historically enshrined in law. A woman may no longer be legally
required to remain with a husband who beats her, but if she has
nowhere to go, no income or employment opportunities but children to
support, then her restriction is in practice the same as it was in the
past (see Gendercide Watch;
WomenWatch).
Given long-standing customs of subordination, the traditional
disparity of power, and the typical difference in size and strength
between men and women, the threat of physical harm and the
differential exercise of economic and political power are sufficient
to maintain male dominance unless the law intercedes to counteract
these forces (Husseini 2007; Manderson 2003; Schneider 2000; Rhode
1997). Both in the US and elsewhere, immigrant or undocumented women
may be particularly vulnerable both to their partners and to
enforcement failures.

So, why hasn’t the law interceded more successfully? Feminist
theorists give different answers to this question. Liberal feminists
may focus on biased attitudes of police officers, prosecutors, and
judges, the majority of whom are male. Other feminists point to
persistent economic inequality between women and men, with resulting
dependency that makes it difficult for women to leave abusive
relationships or to resist harassment. For example, Schultz (2003)
argues that opposition to sexual harassment should not be identified
with opposition to sex in the workplace but instead with opposition to
practices that tend to exclude women from jobs and with a vision of
genuine equality at work.

Dominance feminists offer the more radical critique that the
pervasiveness, seriousness, and tenacity of male threats and the
inadequacy of official responses reflect the patriarchal construction
of gender itself on a model of dominance and submission. That is, the
law reflects a way of thinking on which masculinity means strength,
forcefulness, aggressiveness, and domination and femininity means
delicacy, resistance, submission, and subordination. The distinction
between persuasion and force appears as a fine line that is easy to
cross. If the distinction between normal sexual behavior and rape
turns on a last minute decision by a woman to stop resisting and
submit, then it will hardly be surprising if rape turns out to be both
very pervasive and widely denied (McGregor 2005; MacKinnon 1989).
Furthermore, if the very concept of masculinity is not just strength
but domination, then resorting to violence to enforce female
subordination is a clear correlate of the model. If standards of
reasonableness—what it is reasonable to expect partners to
understand, to ask, and to do—are male, the boundaries of
acceptable behavior will look very different than if judgments of
reasonableness are understood to be gendered—and, largely, male.
Finally, if the natural relation between the sexes is taken to be both
hierarchical and adversarial, then a male dominated legal system
formulated by men from a male perspective is bound to protect the
interests of men at the expense of women whenever the two conflict or
are perceived to conflict. Thus, the patriarchal construction of
gender makes domination the model of masculinity and rape (or at least
power and submission) the model of sex (MacKinnon & Siegel 2004;
Estrich 2001, 1987; Schneider 2000; Schulhofer 1998; MacKinnon
1989).

This dominance critique has been widely misunderstood, however.
Critics of the dominance approach characterize it as condemning all
sex and indicting all men as rapists, but this criticism is to some
extent unfair. A few exaggerated claims made by some feminists, highly
publicized in the early 1970s, did condemn all sex. But in a more
enduring sense the dominance critique relies on several observations
that illustrate the truth of feminist claims about the entrenchment of
patriarchy as the status quo and the domination model of sexuality.
Many feminists claim that the use of sex to dominate is pervasive,
affecting how people think and interact in all cultures (Schneider
2000; MacKinnon 1989). Critics interpret this observation as a claim
that every sexual act is an act of domination (or rape), an inference
that does not follow from the general observation about the role of
sex in oppression. Part of the reason for reinterpretation is that
once again feminists are arguing against the norm. If feminists are
correct that domination is the patriarchal model of sexuality and
patriarchy is the status quo, then it is not surprising if they appear
to be arguing against all sex itself, at least according to anyone who
cannot envision an alternative model of sex.

Initially, feminists were divided in how to address the dominance
model of sexuality in law and society. Focusing on causes or
influences, some feminists attempted to challenge media stereotypes,
an approach for which they were criticized as censors. Some challenged
the fashion and beauty industry with miniscule impact while suffering
considerable personal ridicule for their efforts. Some focused on
opposing pornography (especially violent pornography) as the symbol of
the dominance model and developed model anti-pornography statutes for
jurisdictions to enact (see the entry on
pornography and censorship).
When one jurisdiction—Indianapolis—did enact a statute
providing injunctive relief and a damages remedy for violent
pornography, it was quickly held to be an unconstitutional violation
of free speech
(American Booksellers v. Hudnut,
(771 F.2d 323 (7th Cir. 1985)). That the feminist message of
opposing female subordination was criticized as a Victorian
condemnation of immoral sex, some feminists contended, illustrated the
deep entrenchment of the domination model. Instead, feminists
suggested developing better models of masculinity (MacKinnon &
Siegel 2004; Estrich 2001; Rhode 1997). More recently, many feminists
have explored the role of structural injustice in maintaining gender
oppression (e.g. Parekh 2011))

Conflicts continue to this day over the permissible limits on free
speech, both where sex is involved and more generally. The development
of video and robotic technologies that allow highly realistic
simulations of degrading or violent sexual acts have placed additional
challenges to regulatory efforts, as these depictions do not require
human performance and thus do not directly harm individuals creating
the depictions. Some argue that viewing these materials should be
criminalized because this conduct is wrongful and it can be the proper
object of the criminal law to punish wrongdoing even when it does not
harm others directly (Danaher 2017). Feminists have pointed out that
drawing the line for state intervention at direct harm to others hews
closely to problematic distinctions between the public and the private
drawn by Millian liberals. Bracewell (2016) observes in addition that
the earlier ordinances advocated by MacKinnon and others proposed
damage remedies and injunctive relief rather than criminalization; the
carceral turn against violent speech is more readily aligned with
liberalism’s delineation of the proper role of the state as
harm-prevention. Indeed, the U.S. Supreme Court decision striking down
California’s statute imposing civil fines for the sale of
violent video games to minors rested on the liberal view that
content-based regulation of speech is impermissible,
Brown v. Entertainment Merchants Association,
564 U.S. 786 (2011).

Finally, feminist legal scholars have proposed legislation and trial
practice procedures that would treat domestic violence as part of a
systematic cultural environment that discriminates against women
(Schneider 2000). These proposals are regularly undermined by (well
meaning) therapeutic models that treat domestic violence as individual
psychological problems of anger management or substance abuse or the
like, rather than as part of a widespread social problem. Medical
approaches often depersonalize the issue as family dysfunction. The
male perpetrator seems to disappear and responsibility fades as though
the harm were caused by a disease rather than by a violent man, a
responsible human agent. Clearly countering entrenched acceptance of
male violence against women will take long-term, concerted effort.
Impressive gains have been made, but much more is needed (MacKinnon
2006; Husseini 2007; Manderson 2003; Schneider 2000; Hassan 1998).

Unequal treatment in social and economic life—in schools, public
accommodations, employment, housing, insurance, pensions, investment,
sports, the environment, and more—has been another target of
feminist legal critique. Here, too, the question has been what equal
treatment under law requires in the face of differences, including
supposed biological differences, histories of discrimination, and
entrenched social institutions. The law has developed from the removal
of outright barriers—male-only public universities, for
example—to non-discrimination, to consideration of what
conditions and practices adversely affect women to the extent of
generating inequalities that ought to be addressed in law.

In the US from the 1940s on, courts gradually began to enforce the
Equal Protection clause of the 14th Amendment to apply
strict scrutiny to state-imposed categorizations based on race; later
on, constitutional law began to address whether race and sex could be
analogized or even coupled for purposes of analysis (Mayeri 2011). In
1963, the US Congress passed the Equal Pay Act, amending the Fair
Labor Standards Act to prohibit unequal pay on the basis of sex for
“equal work on jobs the performance of which requires equal
skill, effort, and responsibility, and which are performed under
similar working conditions,” 29 U.S.C. §206(d) (2012).
(Congress, in a dispute about comparable worth, left open the
interpretive question of whether this statute requires the same pay
for the same work or equal pay for substantially equivalent jobs, a
comparable worth standard.) The Civil Rights Act of 1964 followed the
next year, explicitly establishing rights not to be discriminated
against on the basis of race, sex, religion or national origin in
areas that included employment (Title VII), education (Title IX) and
governmental benefits. Many nations have similar laws (phrased in
varying language) and these have been or could be of considerable
benefit to women, especially where bias is overt and provable.

Unfortunately, in much of the world today discrimination is far from
overt, but no less effective for its increased subtlety. In some ways
progress toward equality has been substantial in many parts of the
world. But in other respects advances have been slow, even in
progressive nations. Enshrining equality in law is a far different
matter from implementing it in practice. Women have been active
participants in the public sphere in large numbers in many societies
for thirty years or more. Yet the great majority of women remain
clustered in the bottom or middle ranks in otherwise male dominated
professions, or segregated into traditionally female fields. Politics
remain strongly male dominated. And the top echelons of business are
still a male preserve: the so-called glass ceiling (Kellerman &
Rhode 2007; Fineman & Dougherty 2005; Estrich 2001). Despite
increased educational, political and employment opportunities for
women, the feminization of poverty (Pearce 1978) continues to increase
while equality of power remains elusive. Changes in divorce law and
the law of alimony and child support have been factors in
poverty’s feminization (Smock, Manning & Gupta 1999),
raising questions for feminist theory about whether equality requires
re-institution of protectionist laws. In employment, women
consistently earn less for comparable work in the same field, and
female dominated occupations are consistently paid less than male
dominated ones, even when the male occupations require less education
and involve less responsibility (Kellerman & Rhode 2007; Allen
2005; Fineman & Dougherty 2005; Roberts 2002; Estrich 2001;
Williams 2001; Rhode 1997). For feminist legal scholars, the
overarching question is what roles the law should play in
response.

One set of issues concerns the effects of bias that cannot be
demonstrated to be intentional discrimination: bias that is
unrecognized or implicit but that is bias nonetheless. In employment
and other areas of social and economic life, supposedly objective
rules may be applied differently to men and women. For example, a
woman may be told the company does not allow part time work, but a man
may be allowed to cut back in order to pursue some valued activity,
such as holding political office. And women are often graded or
evaluated lower on the basis of gender alone, without the recognition
that this is what is taking place. Symphony orchestras famously
discovered that the number of women musicians selected rose
dramatically when applicants auditioned anonymously from behind a
screen (Goldin & Rouse 2000). One use of statistical evidence in
antidiscrimination law in the US is to raise inferences of
unrecognized bias, hence discrimination, in situations such as
this.

A further set of issues concerns how law should address the disparate
impact of apparently sex-neutral policies. Even without explicit or
implicit bias, many longstanding policies may affect men and women
differently. Policies discouraging or prohibiting part time work, when
consistently applied to both men and women, may still have quite
different consequences for parents with primary responsibility for
child care, thus disadvantaging women disproportionately. As Williams
(2010) points out, the US continues to have a workplace structured on
the basis of the norms of the 1950s, assuming a breadwinner husband
and a wife at home taking care of the children. Flexible work
schedules, predictable shifts, consistent start and stop times, day
time work, or part time work at hourly rates or with benefits
proportionately equivalent to those of full time workers simply are
not available to much of the workforce in the US or elsewhere.
Moreover, the US, unlike other advanced industrial societies, has no
general statutory requirement for paid family leave.

These many policies pose classic dilemmas of difference and can be
deconstructed by understanding the male norms they assume, as
discussed in Section 1. Employment policies concerning pregnancy are
notorious examples warranting separate mention. At one point, the U.S.
Supreme Court concluded that failure to cover pregnancy under state or
employer disability insurance programs was not discrimination on the
basis of sex, as it differentiated between pregnant persons and
non-pregnant persons.
(Geduldig v. Aiello,
417 U.S. 484 (1974);
General Electric Co. v. Gilbert,
429 U.S. 125 (1976)). Since pregnancy did not affect all women,
denying pregnancy benefits did not discriminate against women on the
basis of sex, or so the reasoning went, although these policies would
certainly have different impacts on women than on men. Men and women
were being treated the same: neither received pregnancy benefits. So
men did not receive any benefits that women did not receive. And women
did not receive any benefits that men did not receive. The logical
implication was that requiring a benefits program to include pregnancy
benefits for women would entitle them not to equal rights, but to
special rights; not to equal treatment but to special treatment (Olsen
1995; Smith 1993; Bartlett & Kennedy 1991). Feminists were stunned
by this argument—after all, only women can become
pregnant—and the US Congress enacted the Pregnancy
Discrimination Act several years later. The most recent
battleground over apparently neutral rules has been the recognition of
exceptions for employers with religious objections from providing
contraceptive coverage for their employees.

In addition, some policies that differentiate based on sex may be
perceived as just or as beneficial to women. Affirmative action
policies designed to root out the lingering effects of prior
discrimination are an example of policies differentiating on the basis
of sex that may be regarded as just. Other policies have been seen
justified on a variety of grounds, including benefits to society,
benefits to women, or distributive justice. In the US, these have
included excluding women from jury duty based on their supposed
responsibilities in the home, giving survivor’s benefits to
widows but not to widowers, and creating single-sex schools. To some
critics, all of these policies violate formal equality. To feminists,
underlying issues for achieving equality include determining whether
any of these policies enforce stereotypes, entrench prejudice, or
treat anyone unfairly—and whether law should be used to
challenge them as a result.

Moreover, sex is not the only ground of legally actionable
discrimination. Some critical race theorists, queer theorists,
disability theorists, and other feminist legal philosophers have both
clarified and complicated the issue of equality and difference by
pointing to discrimination based on race, class, ethnicity, sexual
orientation, disability and age (Mayeri 2011; Nussbaum 2006; Allen
2005; Crenshaw 1996, 1989; Valdes 1995; Matsuda 1987). As discussed
above, the scholarship on intersectionality creates complex pictures
of identity and the structure of discrimination. For example,
employment discrimination against women of color may not be simply a
matter of race-plus or sex-plus, but a phenomenon of interaction
between these and possibly other categories. Some feminists have
pointed out as a problem in particular of liberal feminism that much
of its focus is directed to the concerns of white, middle class,
professional women (Williams 2011, 1997, 1992; Roberts 2002; Crenshaw
et al. 1996).

For all these reasons, women remain at a serious disadvantage both at
work and at home (Williams 2010; Fineman & Dougherty 2005; Roberts
2002; Okin 1995). In the workplace it has been noted that despite the
many forms of discrimination described above, many women are able to
progress quite well as long as they function as perfect workers (i.e.
as men). These women also have the greatest legal resources to combat
discrimination, which shows that the workplace has changed little and
that the standard of evaluation is still male (Williams 2010; Fineman
2004; Estrich 2001). This precludes women from being mothers and still
being treated as equals in the workplace. Many instances of
discrimination appear to start when a woman becomes a mother, even if
her work product has not changed. And many women find themselves in
the double bind of being disliked and disapproved of as bad mothers or
discounted and disrespected as uncommitted workers. This has been
identified as discrimination and is often legally actionable. Joan
Williams (2001) has called this additional barrier the “maternal
wall” and adds it to the glass ceiling as a form of illegal
discrimination. But it remains difficult to prove and difficult to
counteract. Feminist philosophers of law have offered a variety of
proposals for counteracting it (Allen 2005; Fineman 2004; Estrich
2001; Williams 2001; Rhode 1997). Some societies handle the
coordination of family and work better than others, and some progress
has been made in some places; but the burdens of domestic labor in the
private sphere remain greatly undervalued and largely invisible, and
the stereotype of the domestic and nurturing mother is deeply
entrenched.

The economic disadvantages of women at work are reinforced by domestic
disadvantages, either as a formal matter of family law or in the
implicit biases in how apparently neutral rules are applied. While
most societies idealize the role of the mother, her domestic work is
consistently undervalued or unpaid. As a result, often when mothers
seek divorce, child custody, and property settlements they are gravely
disadvantaged (Fineman 2004; Williams 2001; Weitzman 1992, 1987). In
some societies the de-valued status of wives and daughters leaves them
without inheritance, property, or even without adequate food, health
care, or education (Carr et al. 1996; Okin 1995; Sen 1995; Chen
1995,1983). Many feminist legal scholars have offered proposals for
revising some family laws with some modest success. Some have
suggested pay scales for traditional domestic duties and alternative
models for custody suits and property settlements (Williams 2001; Jain
1995; Olsen 1983). And some feminists have analyzed the domestic ideal
itself, suggesting an alternative legal model of the family. Martha
Fineman (2004, 1995) has argued that the state has no reason to
reinforce and privilege the sexual family—the sexual relation
between a man and a woman that is the traditional basis of marriage as
a legal institution. Rather, the care-giving relation is what should
be encouraged and supported by the state. One problem with the
care-giving role is that it makes the care-giver dependent on another
source of income, typically and traditionally a breadwinner. It is
this dependent status of the care-giver that needs to be addressed in
law and public policy, assuming that care-giving is a positive and
indeed a crucial role in human life. According to this view, the myth
of autonomy is an unfortunate side effect of a male perspective that
tends to make the private domestic sphere both invisible and de-valued
(Fineman 2004, 1995). And this issue is further complicated by the
intersection of gender with race and class (Roberts 2002).

This de-valuation and invisibility has contributed directly to the
feminization of poverty, which is now a problem of global proportions.
Global poverty is getting worse, and increasingly women bear the brunt
of it. Two billion people (about one out of three) live in extreme
poverty on less than two dollars a day. About 800 million go to bed
hungry every night, and eight million die from poverty related causes
each year. More than seventy per cent of them (nearly three fourths)
are female. So serious are the effects of extreme poverty on women
(and girls) that the World Health Organization has named it a disease
(“extreme poverty,” coded Z59.5) and called it “the
world’s most ruthless killer” (Jain 2005, p. 138).

The reasons for the feminization of poverty are complex and differ in
important respects by culture. Some women are poor because their
society is poor—devastated by natural disasters or war and
social turmoil, or sapped by corrupt officials or colonial powers.
Some are refugees, and some are sick, old, or disabled. Many of the
poor are children. It has been noted that extreme poverty for both men
and women is attributable to a variety of entrenched traditional
structures such as class or caste hierarchies, ethnic or religious
discrimination and unequal land distribution (Carr, Chen &
Jhabvala 1996). And often these long term structural problems are
aggravated by globalization, world markets, economic restructuring and
such recent trends in the world economy. Women’s poverty results
from all these factors: being part of a poor family, village, or
region, but is compounded by the subordination of women within the
family, community or social structure at large. When poverty is bad it
is worse for women. When food and medicine are short the most deprived
are women and girls. Norms of seclusion—exclusion from
inheritance, lack of credit, lack of training and education—all
disadvantage women and girls. In all societies the poorest women carry
compounded burdens of discrimination by race, class, caste or religion
as well as sex discrimination (Roberts 1995; Chen 1995; Crenshaw 1989;
Matsuda 1987).

Many programs have been proposed and initiated to alleviate this
problem. Women’s unions and cooperative associations have been
formed. New models of credit and lending are being tested. The UN,
various NGOs and Women’s Organizations, as well as national and
local organizations, have been working to increase opportunities for
literacy and employment for women and girls (Jain, 2005; Carr, Chen
& Jhabvala 1996; Nussbaum & Glover 1995). Pioneers of
micro-lending Muhammad Yunus and the Grameen Bank received the Nobel
Peace Prize in 2006. Yet poverty and polarization are increasing in
many societies. Many feminists are now of the view that reform of
economic and social institutions is critical to the well being of
women. The sharp distinction between public and private labor needs to
be recognized as an artificial one (Fineman and Dougherty 2005). As
noted by Chen, “so long as policy-makers make the artificial
distinction between the farm and the household, between paid work and
unpaid work, between productive and domestic work, women will continue
to be overlooked” (1983, p. 220). Thus, the interaction between
private labor and the public good must be, and is beginning to be,
acknowledged. For example, Chen (2011) argues, contributions of unpaid
labor should be included in estimates of GDPs; contributions of work
in the informal sector (which tends to be dominated by women and low
income men) is increasingly being included in national and
institutional studies potentially affecting economic policy; and
unpaid domestic labor is now sometimes considered as having monetary
value in court cases.

Some feminists have concluded that, like the dominance model of
sexuality, the domestic model of women’s unpaid labor may not be
addressed by denouncing it directly. It may also require incremental
erosion by addressing its causes and effects. That is, it must
gradually be replaced with a better model. According to Chen (1995,
1983), for example, (ideological) arguments for the equality of women
in rural India and Bangladesh were met with great resistance, but when
the approach was revised to provide pragmatic assistance for economic
development to poor women that substantially improved their lives (and
thus the lives of their families) resistance substantially decreased.
Dreze and Sen (1989, p. 58) have noted “considerable evidence
that greater involvement in outside work does tend to go with less
anti-female bias in intra-family distribution.” Respect for
women arguably increases as their independence increases.

Communist societies that purported to institute equality for women
from the top down, so to speak, failed to accomplish their goal
precisely by overlooking the obvious conflict between the perfect
mother and the perfect worker. For example, commentators such as Li
(1995) contend that in China the Communist model of equality
superimposed a thin veneer of equal gender relations over 5,000 year
old patriarchal customs that strongly socialized women to the roles of
obedient and deferential wife and daughter. Combining these norms with
Communist women’s equal obligations as workers created double
obligations for women without any real recognition of the double role
as a double burden (Li 1995). Some feminists have noted that the
Soviet Communist idea of gender equality and its post-communist
development created a triple burden, as women were expected to
function in three roles: wife and mother; good worker or professional;
and social activist (Petrova 1993). And today, as women enter the
public sphere around the globe, they carry the burdens of the private
sphere with them, because the institutional structure has not been
changed to accommodate social and economic evolution or to recognize
the value of traditional women’s work (Fineman 2004, 1995).

Many feminists have concluded at this point that it is critical to
mainstream women into the public sphere, thereby increasing their
visibility as economic contributors and, thus, their control over
their own lives. It is crucial to weaken the public/private
distinction to make the general work environment more hospitable to
parents and caregivers in general. And it is imperative to continue to
raise feminist consciousness: to identify the bias of male norms, and
yet to attend to the contextual surroundings necessary for an accurate
assessment of complex human relations, as well as pragmatic solutions
to longstanding entrenched inequality. Law is a critical tool in this
effort (Stark 2004; Williams 2000; Okin 1995).

Law furthers social stability but may entrench norms of oppression.
Law can also be a necessary means for reform. Law can be an
anchor to the past or an engine for the future. Each function has its
place. Feminist legal philosophy is an effort to examine and
reformulate legal doctrine to overcome entrenched bias and enforced
inequality of the past as it structures human concepts and
institutions for the future.

Halley, J. with P. Kotiswaran, H. Shamir, and C. Thomas C., 2006.
“From the International to the Local in Feminist Responses to
Rape, Prostitution/Sex Work, and Sex Trafficking: Four Studies
in Contemporary Governance Feminism,” Harvard Journal of Law
& Gender, 29: 335–423.

Acknowledgments

The authors would like to thank Samara Casewell for assistance with
the original bibliography. As of March 2013, Leslie Francis has taken
over updating this entry which was originally written by Patricia
Smith.